Fifth Circuit Blog

Friday, December 27, 2013

Conviction Unnecessary to be Inadmissible for Reason to Believe Drug Trafficker

Cuevas sought review of the Board of Immigration Appeals’
decision concluding that he was inadmissible pursuant to 8 U.S.C. § 1182(a)(2)(C)
because there was reason to believe he was a drug trafficker.The immigration judge (IJ) initially
concluded that Cuevas was a drug trafficker because agents found nearly 24
kilograms of cocaine concealed in the rear panel of Cuevas’ car when he was
reentering the United States from Mexico, he bought two weeks before, and he
had exclusive control over the vehicle except for a period of 60 and 90 minutes
while his headlight was fixed at a mechanic’s shop in Mexico.The BIA remanded, instructing the IJ to
determine whether the DHS had “proven by clear, unequivocal, and convincing
evidence” that there exists reason to believe that Cuevas was a drug
trafficker.

On remand, the IJ relied on additional evidence to conclude
Cuevas was a drug trafficker: he was driving his own car, there were fresh weld
marks on the rear quarter panel, and the quantity of cocaine indicated illegal
trafficking.The IJ gave very little
weight to Cuevas’ testimony that he did not know the cocaine was there and had
not noticed the modifications made to his car to hide the cocaine.The BIA approved of the IJ’s decision the
second time around.

On review, the panel affirms the BIA’s decision, joining the
other circuits that have held that a conviction is unnecessary to be
inadmissible pursuant to § 1182(a)(2)(C).The panel does not determine the exact measure of evidence needed,
however.The First Circuit requires
evidence equivalent to a probable cause standard, and the Ninth Circuit
requires a greater showing of reasonable, substantial, and probative evidence.The panel concludes that the DHS meets either
standard in this case.As such, the
panel lacks jurisdiction to consider the petition for review and dismisses the
case.

Thursday, December 26, 2013

Washington Residential Burglary Is § 2L1.2 Crime of Violence

Guerrero pled guilty to illegal reentry in violation of 8
U.S.C. § 1326 and possessing a firearm as a prohibited person in violation of
18 U.S.C. §§ 922(g)(5)(A).Over Guerrero’s
objection, the district court determined that his prior conviction for
residential burglary in Washington, Wash. Rev. Code § 9A.52.025, is a “crime of
violence” both under § 2L1.2 and § 4B1.2(a).The court applied the enhancements and sentenced Guerrero accordingly.

Guerrero argues that the Washington statute was broader than
the generic definition of burglary because it includes fenced areas. Washington defines a dwelling as “any building
or structure . . . which is used or ordinarily used by a person for lodging”
and “building” as “any dwelling, fenced area, vehicle, railway car, cargo
container, or any other structure used for lodging of persons or for carrying
on business therein . . . .”The panel
rejects this argument, finding “there is little or no ‘realistic probability’
that a Washington court would apply the statute to anything other than the
structures permitted by” Supreme Court and Fifth Circuit precedent.See,
e.g., United States v.
Castillo-Morales, 507 F.3d 873, 875 (5th Cir. 2007) (defining burglary of a
dwelling as the unlawful entry into or remaining within, with the intent to
commit a crime, a “structure, tent, or vessel where someone lives”).The panel recognizes that the Ninth Circuit
reached the opposite conclusion in United
States v. Wenner, 351 F.3d 969 (9th Cir. 2003), finding that Washington has
a broader definition of dwelling.The
panel, however, justified its different conclusion because of “the benefit of
an additional decade of jurisprudence in which Washington’s courts have
consistently interpreted the term such that it denotes and connotes traditional
structures, and only those used for human habitation.”Thus, Washington residential burglary is a
crime of violence for purposes of § 2L1.2(b)(1)(A).

Note: The opinion makes a few confusing misstatements
that do not affect the ultimate analysis.Don’t let those confuse you.For
instance, it applies the U.S.S.G. § 4B1.2 definition of a “crime of violence”
instead of the definition in § 2L1.2.Both
§ 4B1.2 and § 2L1.2 state that “burglary of a dwelling” is a crime of violence,
and the § 4B1.2 definition also applies to this case because the guideline for
his firearm conviction, U.S.S.G. § 2K2.1, refers to the crime of violence definition
at § 4B1.2.Also, the opinion states
that Guerrero pled guilty to “knowing unlawful presence in the United States,
in violation of 6 U.S.C. §§ 202(3) & 202(4).” He really pled guilty to illegal reentry in
violation of 8 U.S.C. § 1326.Being present in the United States is
not a crime unless it satisfies the criteria of “found in” described in 8
U.S.C. §1326.Section 202 of Title 6 of
the U.S.C. merely enunciates the responsibilities of the Under Secretary for
Border and Transportation Security.

Wednesday, December 18, 2013

The panel vacates Duron’s conviction and remands after
finding that the district court’s admission of his deceased grandmother’s
affidavit violated his Confrontation Clause rights.Duron went to trial on an illegal reentry
charge with the defense that the Government could not prove beyond a reasonable
doubt that he did not derive citizenship through his U.S. citizen mother.

At trial, the Government introduced over Duron’s objection a
40-year-old affidavit signed under oath by his now deceased grandmother in
connection with an investigation into document fraud.In that affidavit, the grandmother accuses
others of falsely registering her daughter’s (Duron’s mother) birth in Texas.The district court overruled the objection finding
that the affidavit is nontestimonial because it was not created to accuse Duron
in his illegal reentry trial.

On appeal, the panel finds that the district court erred by
admitting the affidavit because the Government did not meet its burden of
establishing that the affidavit was nontestimonial.First, the Government argued that the
affidavit was nontestimonial because it was created primarily for providing
evidence for immigration, not criminal, proceedings.The panel finds, however, that the Government
did not provide conclusive evidence that the affidavit was not created for the primary purpose of providing evidence for a
later criminal trial.

Second, the Government argued that the affidavit is
nontestimonial because it was not prepared for that particular prosecution of
Duron. After reviewing Williams v. Illinois, 132 S. Ct. 2221
(2012), the Confrontation Clause, and other precedent, the panel concludes that
the Government’s proposed “accusation test” construes the Confrontation Clause
too narrowly because it does not address the witness-related reliability
concerns.

Given the circumstances of the affidavit and the jury’s
initial deadlock (suggesting it seriously considered Duron’s
derivative-citizenship defense), the panel concludes that the Government did
not prove that the district court’s error was harmless beyond a reasonable
doubt.

Thursday, December 12, 2013

Grant of New Trial Based on Prosecutor’s Comments Reversed

A jury convicted Poole of being a felon in possession of a
firearm, but the district court vacated the jury verdict and granted a new
trial based on certain comments and cross examination by the prosecutor.The panel reversed and remanded so that the
jury verdict could be reinstated.

Poole first asked for a mistrial when deputy marshal
testified on direct examination that one of his duties is “to locate and
apprehend local and federal fugitives.”Defense counsel objected, and the court instructed the jury that Poole
was not a fugitive.The panel found that
this line of questioning, which allowed the marshal to explain his duties and
give context for being at the scene, is permissible and was not erroneous.

Poole also asked for a mistrial because, during closing
arguments, the prosecutor stated that it was not Poole’s “first time in this
situation”; asked the jury if it was “going to believe a liar,” referring to
Poole; and referred to Poole’s gun as an “assault rifle.”These arguments eventually convinced the
court to grant the mistrial.

However, the panel found that none of these comments in the
context of the trial indicated that the verdict was compromised.The jury was already aware of Poole’s
convictions, and the prosecutor referred to them in order to rebut Poole’s
defense that he made up the story about owning the rifle, not to demonstrate
criminal propensity.Further, “[t]he
government was well within its rights to suggest to the jury that Poole was a liar”
since Poole himself testified that he lied.The panel also rejected Poole’s argument that calling his gun an “assault
rifle” justified the court’s grant of a new trial, noting that the gun was
referred to as an “assault rifle” throughout the trial but Poole never objected
to it.

Since the panel found that none of the challenged comments
were improper, the court did not have the discretion to order a new trial.The panel also rejected the argument that a
new trial was necessary because of the prosecutor’s contemptuous conduct.“[A] new trial is not a mechanism for
punishing contempt, by a prosecutor or otherwise, but a way to avoid injustice
generally and to avoid a jury verdict for which one has compromised confidence
specifically.”

Tuesday, December 03, 2013

Thompson challenged the government’s decision to use five of
its seven peremptory strikes against black prospective jurors.The government justified its decision based
on the prospective jurors’ demeanors and, for three of them, also on perceived
sources of bias toward the government.Thompson argued these reasons were pretextual because the prosecutor struck
71% of the black potential jurors.He
also argued that Snyder v. Louisiana,
552 U.S. 472 (2008) requires the district court to state its assessment of
demeanor on the record.The panel
disagreed, though, and held that “Snyder
does not require a district court to make record findings of a juror’s demeanor
where the prosecutor justifies the strike based on demeanor alone.”Further, the record made it clear that the
district court found the prosecutor’s demeanor-based justification
credible.After considering the strikes
of all five jurors, the panel affirmed the denial of Thompson’s Batson challenge.

The panel also affirmed Thompson’s conviction, finding the
evidence was sufficient to show he was part of the conspiracy and used weapons
in furtherance of it.Thompson complained
that the only evidence connecting him to the conspiracy was the testimony of
co-conspirators.The panel found,
however, that Thompson failed to show such testimony was factually
insubstantial or incredible.See United States v. Medina, 161 F.3d
867, 872-73 (5th Cir. 1998) (“As long as it is not factually insubstantial or
incredible, the uncorroborated testimony of a co-conspirator . . . may be constitutionally
sufficient evidence to convict.” (internal quotation and citation omitted)).